Click the link at the bottom of this post to listen to this week's special Friday edition of the Thursday Interview. This week's interview is with Prof. Adam N. Steinman of the University of Cincinnati College of Law about his article "Reinventing Appellate Jurisdiction," which was the subject of a prior post here. Thanks to Adam for a great interview.

Whether a
private actor doing no more than complying with federal regulation is
a “person acting under a federal officer” for the purpose
of 28
U.S.C. § 1442(a)(1), entitling the actor to
remove to federal court a civil action brought in state court under
state law.

The result the 4th Circuit reached recently in Eddy v. Waffle House was not unexpected, but it's convoluted analysis of whether an error constituted reversible error seems to unnecessarily stretch collateral estoppel principles.

In Eddy, the plaintiffs were members of an extended family who alleged Waffle House refused them service because they were black. The claim arose after a Waffle House employee allegedly made a remark to Mark about not serving black people. Mark then communicated the remark to the other family members. The district court granted summary judgment to Waffle House on the other family members' claims, reasoning that since they did not actually hear the remark, they were not denied service. Mark's claim went to trial, where the jury rejected his claims.

The Fourth Circuit concluded that the district court wrongly granted summary judgment on the other family members' claims, reasoning quite sensibly that one would not expect family members to stay and dine if another member of the family had been denied service because of his race. In a sense, the family members' claims were derivative of Mark's claim, and at the summary-judgment stage, the district court had properly concluded that there was a genuine issue of material fact as to Mark's claim. So at this point, the Fourth Circuit is faced with a jury verdict rejecting Mark's claims, and a set of claims by his family members that were wrongly dismissed but that depended upon the same set of facts the jury rejected regarding Mark's claims. A liberally edited and condensed version of the Court's harmless-error analysis follows:

That,
however, is not the end of our inquiry. In view of our deciding here
that summary judgment was erroneous, we must inquire whether failure to
do so was prejudicial or was harmless error.The
defendant argues that even if the grant of summary judgment was in
error, the error was harmless because the claims of Mrs. Lander and the
Eddys are the same and based on identical facts as those of Mr. Lander,
which were in turn fully tried to a jury. Thus, the argument goes,
there is no need to allow a separate trial on the claims of Mrs. Lander
and the Eddys, because all issues relevant to their claims have been
heard and rejected by a jury. We agree and have considered almost
exactly the same fact situation in Street, infra.

Generally,summary
judgment can be affirmed on appeal only if the evidence available to
the trial judge at the time he ruled on the motion established that
there was no genuine issue of material fact. This case is
extraordinary, however, in that the facts material to the [defendant's]
liability were fully developed in the subsequent trial against Officer
Surdyka.. In
the case at bar, whatever facts may have been in dispute were resolved
in the subsequent jury trial which absolved the defendant. In the
ordinary situation, we apply the doctrine of collateral estoppel to bar
relitigation of an issue that has already been judicially decided.

For
collateral estoppel to apply, the proponent must establish that (1) the
issue sought to be precluded is identical to one previously litigated;
(2) the issue must have been actually determined in the prior
proceeding; (3) determination of the issue was a critical and necessary
part of the decision in the prior proceeding; (4) the prior judgment
must be final and valid; and (5) the party against whom preclusion is
asserted must have had a full and fair opportunity to litigate the
issue in the previous forum. It is clear that criteria (1)-(4)
are satisfied in this case. Certainly, whether or not the racist
statement was actually made was central to the resolution of Mr.
Lander's claim and is the very issue that would be litigated by Mrs.
Lander and the Eddys. The only question is whether Mrs. Lander and the
Eddys “had a full and fair opportunity to litigate the issue.”

*The Street case is persuasive, even if not controlling. It is on
almost the same facts as the present case. *** The
same logic holds with equal force in the present case. The evidence in
the record at the time of summary judgment “as embellished and
explained” by subsequent trial testimony, convinces us that a remand
for trial on the Eddys' and Mrs. Lander's claim “would be to no avail.”

In reaching this conclusion, we are in agreement with the Ninth Circuit. In Jackson the Ninth Circuit faced a similar situation as that present here. ***The present facts are similar to the ones in Jackson. The “rights sought to be vindicated” by the Eddys
and Mrs. Lander are the same as those of Mr. Lander. Both cases arose
out of the same incident. All plaintiffs were represented by the same
attorney. On these facts, we agree with the Ninth Circuit that the
claims of the Eddys and Mrs. Lander should be barred.

Perhaps I'm missing something, but I might write:

An error is not reversible unless it has "some likelihood of affecting the result of the proceeding." The wrongly-rejected claims of the family members depended upon the same facts and issues Mark tried and lost. Had the claims gone to trial, the result would have been the same because the jury rejected the facts and issues on which their claims depended. Therefore, while the court wrongly granted summary judgment on the family members' claims, there is no likelihood that this grant affected the result, and therefore there is no reversible error. --RR

Maybe I'm becoming obsessed with electronic discovery in the wake of my interview with Judge Rosenthal, but we've had quite a lot of positive feedback (most of it from litigators) on the helpfulness of her interview so I thought a follow-up post with additional resources for all those struggling with the new federal rules might be in order. The Federal Judicial Center gathers lots of helpful information here, including a paper by Kenneth J Withers on the critical cases in the area. For federal court litigators anxious to get a handle on how judges will approach electronic discovery issues, you can check out a presentation at the National Workshop for U.S. Magistrate Judges and a copy of "Managing Discovery of Electronic Information: A Pocket Guide for Judges." For another view, click here for Professor Henry Noyes's article entitled Good Cause is Bad Medicine for the New E-Discovery Rules.